Having an attorney prepare a Will provides a person with peace of mind knowing that, upon her death, her property will be divided among her heirs in precisely the manner she wishes. However, many people postpone writing a Will because the subject of death is understandably unpleasant. If a person dies without a Will, then Idaho statutes determine who gets the property.
The division and distribution of the deceased’s assets is called intestate succession. As of 2018, Idaho law provides that the assets will be distributed as follows:
- If a person dies and leaves a spouse but no children or parents, the spouse inherits everything.
- If a person dies leaving both a spouse and children, then the spouse inherits all of the community property and one half of the deceased’s separate property. The children divide among themselves one half of the deceased’s separate property.
(Community property is property owned jointly by the husband and wife during the marriage. For example, married couples typically purchase a home in both their names. Community property can be created by other means as well. All property that is not community property is considered separate property.)
- If a person dies leaving a spouse and parents, the spouse inherits all of the community property and half of the separate property. The parents inherit half of the separate property.
- If a person has children but no spouse, the children inherit all the property, and divide it equally among themselves.
- If a person dies without a spouse or children, but has living parents, then the parents inherit everything.
IMPORTANT – These rules do not apply to certain types of property. The following are some example:
- If the deceased had a life insurance policy, then all of the proceeds of that policy go to the persons that the deceased designated as beneficiaries in the insurance policy.
- If the deceased had an IRA or similar pension plan, those assets go to the beneficiaries listed in the IRA, subject to certain limitations in favor of a surviving spouse.
- Payable on Death bank accounts go to the second person named on that bank account.
If a person dies without a Will, the property should not be distributed until a probate case is opened in the local Magistrate Court. This provides judicial oversite of the distribution of property, and also forces a strict filing deadline for creditors who claim the deceased owed them money.